Judge rejects Chief Gemme's 'safety concerns' about deposition

Police Chief Gary J. Gemme has been fighting a requirement to give a deposition in the law office of Hector Pineiro, citing “safety concerns.”

The anxiety of both Chief Gemme and Capt. Jeremiah F. O’Rourke over going to the office at 807 Main St. was the subject of an increasingly intense exchange of seven emails earlier this month. Assistant City Solicitor Wendy L. Quinn asked Mr. Pineiro to allow the depositions to be taken at City Hall or elsewhere, but Mr. Pineiro refused.

The depositions are part of a federal civil suit in which Anthony Hayes, a man arrested by the vice squad March 1, 2007, alleges he was beaten by police without justification. The dispute over the depositions wound up before U.S. Magistrate Judge Timothy S. Hillman.

Magistrate Judge Hillman ordered March 15 that the chief be deposed and videotaped at Mr. Pineiro’s office, as the lawyer demanded. The magistrate judge said it should be done under seal and delivered to him for review

He also ruled that Capt. O’Rourke, head of the Worcester police Bureau of Professional Standards, be deposed at Mr. Pineiro’s office, but not videotaped. That happened March 19, Mr. Pineiro said.

Chief Gemme’s deposition scheduled for that date was postponed because of the death of his father. Mr. Pineiro said that he expects the chief will be deposed in Mr. Pineiro’s office sometime next month.

Ms. Quinn said Chief Gemme’s concerns include “you personally suing him.” Chief Gemme said in an affidavit that Mr. Pineiro “feels that I have taken action based on personal feelings” and he is concerned “because of the potential for retaliatory conduct on the part of Attorney Pineiro.”

The chief said Mr. Pineiro “has exhibited a personal animus toward me” and that the lawyer’s son has been investigated by Worcester police for violent crimes “and is now released on bail and living at Attorney Pineiro’s home.” Chief Gemme said in the affidavit that Mr. Pineiro cites “instances where your office has been surrounded by criminal activity” in the lawyer’s request for a license to carry a firearm.

Mr. Pineiro wrote to Ms. Quinn: “The chief will have the same treatment and consideration that every other police officers/detectives have had when they’ve come to my office. There will not be special treatment for King Gemme.”

He told her “the ‘safety concern’ you parrot and is advanced by Gemme and O’Rourke is farcical.” Mr. Pineiro said he is personally “disappointed by your scurrilous response” and called her “downright disrespectful, patronizing and unprofessional.”

Asked whether he will comply, Chief Gemme emailed yesterday, “We are satisfied that the judge established clear guidelines for the deposition and sufficient warnings to Pineiro regarding his behavior. I don’t believe there will be an appeal.”The issue last week became part of an effort among some city councilors to support the city manager if he chose to oust Chief Gemme.

Last week Councilor-at-Large Frederick C. Rushton said the city is “wasting time and money” fighting the location of the depositions.

“It doesn’t pass the smell test, when the chief has a gun, badge and 400 men and women to protect him. We need better leadership.”

Mr. Hayes alleges he was seriously injured when Officer McGee struck him with a flashlight, breaking bones in his face, and rendering him unconscious in a raid at 5 Sycamore St. Mr. Hayes was charged with possession of cocaine.

The suit filed in 2010 by Mr. Pineiro, who has sued the chief and the city on other occasions, cites 12 other cases of alleged brutality in which Worcester police were not held responsible in internal investigations and alleges there is a “code of silence” in which police do not acknowledge when they know other police commit acts of violence.

It includes an affidavit from a retired Worcester police officer, whose name is blacked out, who said “I saw, heard, and observed the code of silence and how it worked.”

The city denies the allegations. It also said the “unproven allegations” from 1989 through 1999 are inapplicable because the city and the Police Department “have gone through numerous changes in administration and have implemented new polices and procedures, with accompanying training, virtually across the board in the over 12 years since the complaints.”

The city denied that Officer McGee struck Mr. Hayes with a flashlight, that the force used to arrest Mr. Hayes was reasonable and the police actions were justified and in good faith. While contending that Mr. Hayes was not deprived of any rights, the city said “any unconstitutional actions of the individual defendants were not caused by any city policy or custom.”

If Mr. Hayes resisted arrest — which Mr. Hayes denies — he had no right to “and he is responsible for all injuries caused by that resistance,” Ms. Quinn wrote. She called Mr. Hayes’ claims “frivolous and made in bad faith” and the defendants demand the plaintiff pay for their costs and attorney fees.